Wednesday, March 17, 2010

Deeming Legislation Passed

By Mike Dorf

There is some serious confusion afoot about the constitutionality of the plan of the House leadership to pass health care reform indirectly, via a rule that deems the relevant bill passed without a simple yes-or-no vote on the legislation. I would note at the outset the awkwardness of the Republican Party in trying to paint the Democrats as circumventing democratic principles. Republicans and their allies are now demanding an up-or-down majority vote in the House, even as they are perfectly comfortable using their 41 votes in the Senate to prevent just such a vote in the Senate. The Wall Street Journal editorial page even refers--without any intended irony--to "the ordinary 60-vote threshold for passing major legislation."

Now, one might ask, why is it that effectively requiring 60 votes to enact legislation in the Senate is consistent with Article I, Section 7 of the Constitution, which only requires simple majority passage? The only answer ever given is that under Article I, Section 5, "Each House may determine the Rules of its Proceedings . . . ." The cloture rule is a rule of the Senate, and thus effectively immune to judicial scrutiny, even though arguments based on democratic principles and even the text of the Constitution would suggest the cloture rule is unconstitutional.

The great irony here, of course, is that the "deeming" procedure is fully democratic. In voting for the "rule," a majority of the House also votes for its "deeming provision," which, in this instance, provides that if and when the House subsequently votes for the reconciliation bill, it will deem the Senate version of the health care bill passed. Then, if the Senate votes for reconciliation in the same terms as the House, the two identical reconciliation measures having been passed, will go to the President to sign and become law. If the Senate somehow does not vote for reconciliation, or the Senate votes for a different set of provisions than the House, then the original Senate bill, now having been deemed passed by the House, will go to the President for signing.

In a moment, I'll examine the technical validity of the deeming procedure, but I want to start by reiterating the most important fact: What the House Democrats are attempting here will only succeed if a majority of House members vote for it. Thus, in both the Senate and the House, it is the Democrats who are attempting to govern with a majority, and it is the Republicans who are objecting to majority rule.

As far as the deeming procedure goes, there is no inconsistency with Article I, Section 7. To someone unfamiliar with the practice of "deeming," it can sound odd, but it is quite common. For example, numerous federal statutes "deem" Washington, D.C. a state for various purposes. Or to choose an example dearer to conservatives' hearts, numerous statutes--and the Supreme Court's constitutional jurisprudence--deem corporations persons for various purposes. Deeming is simply part of legislating.

Ah, but isn't there a difference between enacted legislation using deeming as part of defining its terms and deeming legislation passed in the first place? Not really. The key once again is that a majority of House members have to vote for the rule in order for the deeming provision to have any effect. As conceptualized quite sensibly by the House parliamentarian, a vote for the rule is a vote for the already-enacted Senate bill, subject to a condition subsequent, namely, House passage of the reconciliation measure. There are numerous analogies here too. Congress frequently grants the President authority to take various measures--such as imposing sanctions against human rights abusers or collecting duties on goods from countries that engage in unfair trade practices--only upon the happening of some condition subsequent. The 2002 Authorization for Use of Military Force Against Iraq, for example, required the President to determine that further diplomatic efforts would be futile in order for the authorization to become effective.

So there is nothing especially peculiar about Congressional action that only becomes effective on the happening of some subsequent condition. The deemer at issue here is especially un-peculiar in light of the fact that the subsequent condition is fully within the House's own control. If a majority of House members don't want to vote for health care reform, they have two ways to kill it: vote against the rule or vote against the reconciliation measure that triggers the deemer clause in the rule. If anything, the deemer approach makes the enactment of legislation in the House harder than under the normal procedure, making the argument that it somehow short-circuits Article I, Section 7, extraordinarily weak.

Is there direct precedent on point? Indeed there is. As numerous commentators have noted, Congress has used the "deeming" procedure repeatedly, especially to lift the debt ceiling. (Here is one telling discussion.) Moreover, I have found one example in which such a "deeming" was made conditional on further action by the other house of Congress:

[Congressional Record Volume 146, Number 143 (Thursday, November 2, 2000)] [Senate] [Page S11509] From the Congressional Record Online through the Government Printing Office [www.gpo.gov] [[Page S11509]] ORDER OF PROCEDURE Mr. MURKOWSKI. Mr. President, I ask unanimous consent that if between today and November 14 the Senate receives from the House of Representatives continuing resolutions funding the Government for 1 day at a time, the individual resolutions be agreed to and the motions to reconsider be laid upon the table. I further ask that if the House of Representatives passes a continuing resolution that contains language other than the funding of the Federal Government for 1 day, the Senate automatically reconvene 2 hours after receipt of the papers in the Senate and it be pending in the Senate following the granting of the routine convening requests. I further ask unanimous consent that if the House of Representatives does not pass S. Con. Res. 160, the Senate reconvene on Monday, November 6, at 11 a.m. for a pro forma session only; that immediately following the convening on Monday, the Senate immediately stand in recess until 11 a.m. on Thursday, November 9, for a pro forma session only. I ask consent that following the convening on Thursday, the Senate stand in recess until 11 a.m. on Monday, November 13, for a pro forma session only. I ask consent sent that following the convening on Monday, the Senate automatically stand in recess until 12 noon on Tuesday, November 14, 2000, as provided in the previous order. The PRESIDENT pro tempore. Without objection, it is so ordered.

Finally, I would hasten to add that I don't quite understand why House Democrats think the deeming procedure will give them political cover against election opponents who want to score points by tying them to their votes for health care reform. A vote for the rule is, after all, a vote for health care reform. But that's a political consideration beyond my expertise. As far as I can tell, the constitutional objection doesn't have much to it.